Owens: Trump should beware when picking Supreme Court nominee

In a recent study, my coauthor and I discovered that federal circuit court judges essentially audition for the president.

President Donald Trump delivers remarks at the beginning of a meeting with small business people in the Roosevelt Room at the White House Monday. During the meeting, Trump said he will announce his “unbelievably highly respected” pick to replace the late Supreme Court Antonin Scalia on Tuesday evening.(Photo: Getty Images)

President Donald Trump is about to announce one of the most significant decisions of his presidency — whom to nominate to the United States Supreme Court. Trump said in a tweet Monday that his decision would be announced Tuesday night.

But as he considers this lifetime appointment, he should take measures to ensure that his nominee is a conservative and will remain one over the long haul. Here’s how.

In a recent study, my coauthor and I discovered that federal circuit court judges essentially audition for the president in an effort to get elevated to the high court. (We called it “courting” the president.) We focus on judges who are likely “contenders” for elevation to the high court and find that they behave quite differently when they perceive a chance to be elevated. They vote differently during a vacancy period than they do when there is no vacancy on the court. We use a statistical approach that allows us to compare their behavior when there is a vacancy to be filled at the Supreme Court versus when there is no such vacancy.

The results are as compelling as they are jarring. The probability of a judge voting consistent with the president’s general preferences increases from 0.42 when no vacancy exists to 0.51 when one does exist — a 21% relative increase. This means that a conservative (or liberal) judge becomes significantly more likely to vote conservatively (or liberally) in a vacancy period than in a non-vacancy period. This finding is noteworthy because to even make it on the president’s short list, a judge must have largely ruled consistent with the president. But during vacancy periods they become hyper-ideological. These judges are also more likely to vote with the government when a vacancy exists and to write dissenting opinions. They do so to solidify their standing with the administration in an effort to get promoted.

Consequently, Trump and Senate Republicans ought to be skeptical of judicial behavior during these vacancy periods. If judges exaggerate their beliefs so as to look more suitable, their selection might come under false pretenses. A judge who looks strongly conservative today may not actually be so strong in the future. Sandra Day O’Connor, David Souter and Anthony Kennedy are perfect examples.

So what can Trump and Senate Republicans do to assure to their nominees are — and remain — consistent conservatives?

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First, Trump could simply recognize that he must discount judges’ self-serving votes during vacancy periods. If the decision among his potential nominees is close, he should consider studying the behavior of judges at a time when they were less likely to be contenders. So, as he looks at the records of Neil Gorsuch, Thomas Hardiman, William Pryor, Raymond Kethledge, and others, he should pay less attention to their very recent behavior.

Second, Trump could nominate non-judges to the high court. There is, after all, no constitutional requirement that the president select circuit court judges for the court. Indeed, that is a relatively new phenomenon. If Trump looks at non-judges for later appointments to the court, he should consider former Solicitor General Paul Clement. Clement was not on the short list Trump released during the campaign. He should have been. Clement is well respected, brilliant, and is one of the finest Supreme Court litigators today. He would make an excellent Supreme Court justice.

Third, Trump could examine potential nominees’ “cognitive styles.” Psychologists have developed software that allows researchers to study how people see the world — in shades of gray or in black and white. A person whose views remained stable over time are less likely to change ideologically while a person whose views varied is more likely to drift. Knowing whether potential nominees have remained stable over time might satisfy Trump and Senate Republicans that a nominee won’t become “another Souter.”

Trump’s decision is not an easy one. There are a number of qualified judges and non-judges who could serve with distinction on the Supreme Court. And it is not often easy to predict what someone will be like decades from now. But as Trump decides ultimately whom to nominate, he should beware the behavior of judges seeking elevation.

Ryan Owens is a political science professor at the University of Wisconsin-Madison.